Sabah Government granted intervention in Federal Attorney General appeal against high court decision

16 May 2024

KOTA KINABALU: The Court of Appeal today granted the Sabah Government’s application to intervene in the Federal Attorney General’s appeal against the decision of the High Court to grant leave to the Sabah Law Society to challenge the Sabah Special Grant Order 2022 made under Article 112D of the Federal Constitution.

The Sabah Law Society objected saying that the Sabah Government should not have the right to be heard since the appeal only concerns leave.

However, counsel for the Sabah Government, Tengku Datuk Fuad, argued that the rights of the Sabah Government against the Federal Government under the Federal Constitution would be negatively affected if it was excluded from today’s hearing.

The Federal Attorney-General did not raise any objection.

Specifically, Fuad argued that the right to call for a review that may result in the 40% Special Grant being allocated under Article 112D(4) is mandatory and that the Sabah Government can call for– and the Federal Government must grant - a review whenever and as required by the Sabah Government.

Further, Fuad argued that if the Federal Government breaches any of its constitutional obligations to Sabah under either Articles 112C or 112D (the 40% Special Grant Provisions), then the Sabah Government can seek redress through the courts (the provisions being ‘justiciable’).

The Federal Attorney-General argued that the 40% Special Grant provisions under Article 112c and 112D are not open to court challenge because they concern financial and political considerations that are non-justiciable.

If the Sabah Government did not intervene today, then there was a risk that its rights to challenge the Federal Government in respect of the 40% Special Grant provisions could be extinguished without ever being heard.

“This Sabah Government - under the leadership of Datuk Seri Haji Hajiji Mohd. Noor - is the first government since 1969 to hold a Special Grant review under Article 112D, resulting in the 2022 Order.

The 2022 Order specifically states that the Sabah Government is further pursuing its rights towards obtaining the 40% Special Grant under Article 112C, while in the meantime providing for the sums of RM125.6 million, RM129.7 million, RM133.8 million, RM138.1 million and RM142.6 million to be paid each year beginning in 2022, respectively.

The 112C Special Grant can only be acquired with the mutual consent and agreement of both the Federal and Sabah Governments. This process must consider the following factors: (i) the financial standing of the Federal Government, (ii) the specific requirements of Sabah, and (iii) the sufficiency of funds for essential state services such as infrastructure for roads, water, and electricity.

“Today’s hearing has nothing to do with whether Sabah is or is not entitled to the 40% Special Grant. Even if the SLS loses, that result will not change or affect Sabah’s rights to the 40% Special Grant. The public’s perception that today’s hearing was ‘do or die’ regarding the 40% grant is simply wrong. "

"That being said, the Sabah Government continues to actively seek the 40% Special Grant through the constitutional procedures set out in the 40% Special Grant provisions of the Federal Constitution.” he stated.